Saturday, December 8, 2007

Well, the Confederacy had at least one thing right...

Pehaps the most significant aspect of nineteenth century U.S. history can be summed up in one sentence: When Abe Lincoln walked through the door, the South left the room. And in 1861, the Confederate States of America adopted its own constitution. If they'd had computers with a cut and paste feature back then, writing this "new" constitution would have taken about twenty-five minutes, because over 90% of it is the same as the United States Constitution as it then stood (Anastaplo, G., The Amendments to the Constitution: A Commentary, 1995 p. 125).

The Confederate Constitution did, however, have a few innovations, some good, some bad, some marginal. The Constitution endorsed and protected slavery (Article IV, section 3). Bad idea. The Constitution prohibited use of national funds for internal improvements such as roads (Article I, section 8). Weird idea. It made the President's term of office six years without letting him run for re-election (Article II, section 1). If you think the current President has held office too long you probably like that. It also gave the President a line-item veto (Article 1, section 7). If you think the current President has held office too long you probably don't like that.

But those rebels did put one thing into their brief effort at establishing a new country that I think was absolutely, positively, a wonderful idea. Just how sound was this thinking occurred to me when I read an item at recently. First let the CSA speak, then CNN:

"Every law, or resoulution having the force of law, shall relate to but one subject, and that shall be expressed in the title" (Article I, § 9, ¶ 20).

Now here's the CNN article:

"Congress has dropped legislation that would have expanded hate crime laws to include attacks on gays after it became clear the measure wouldn't pass the House, aides said Thursday. The bill, sponsored by Sen. Edward Kennedy, was widely supported by Democrats and even some moderate Senate Republicans. But because it was attached to a major defense policy bill that would have authorized more money for the Iraq war, many anti-war Democrats said they would oppose it."; emphasis mine.

What nonsense. Regardless of how everybody feels about the Iraq War or hate crime legislation to cover gays, can't we all agree that having both subjects embraced in one bill leads to nothing but inefficiency and gridlock? Isn't it a bit enlightening to learn that 140 years ago a lot of folks had already figured out that riders attached to riders in bills are deplorable, thus the provision in the Confederate Constitution to end the wretched practice? It's high time we copied Robert E. Lee's people and adopted their Article I, § 9, ¶ 20.

Having endorsed this idea, let me answer two objections that could be offered. First, some of you may be thinking that law has become so intricate, so complex, that we simply CAN'T have laws relating to only one subject, expressed in the title.

That's preposterous. The federal regulations for importing swine covers thirteen pages, but doggone it, every word, every sentence, every paragraph has to do with bringing this little piggie to the market in the U.S.A. (9 C.F.R. § 93.500-521, 2007). Nothing about hate crime legislation or Iraq war funding is in there. What's hate crime to a pig?

Furthermore, I think it's apparent that in all fields of human endeavor, not just law, we can provide the gist in a few words. Dickens summed up a couple of hundred pages with the five words "A Tale of Two Cities;" none of his characters made forays into Iraq or swine importation that had nothing to do with the plot.

A more substantial argument against "one law, one subject" could be made by pointing out that the U.S Constitution--the basis for this blog--doesn't even do that. Consider the Fifth Amendment. It encompasses grand jury indictment, double jeopardy, self-incrimination, due process--and no taking of private property for public use without just compensation! How did that last item get in there? The other aspects of the Fifth Amendment have to do with criminal prosecutions; just compensation is a civil matter. Why is the Takings Clause so out of place?

Yale Professor Akhil Reed Amar suggests that this was a case of "clever bundling" (The Bill of Rights: Creation and Reconstruction, 1998, p. 78). That is, since Constitutional amendments are subject to a straight up or down vote, without the states having power to add this or subtract that, James Madison's pet Takings Clause had a much better chance of making it into the constitution if it was tied with the other principles embodied in the Fifth Amendment than if it stood alone.

But there is a difference between a Constitutional amendment, which requires a supermajority of Congress AND the states to pass, and ordinary legislation, which passes on just a simple majority of Congress. The voting process is far less cumbersome for ordinary federal legislation--only two legislative bodies vote--while for a Constitutional Amendment as many as 101 legislative bodies might vote: the Senate, the House of Representatives, the single Nebraska House, and two houses from each of the other forty-nine states. Given the simplified nature of ordinary legislation and the opportunity to edit proposed law during debate, it need not be "cleverly bundled" as Madison's Fifth Amendment was.

It's a slight digression, but it seems likely from recent precedent that even if Congress passed a law declaring violence against gays a federal hate crime, the courts would not uphold it if it were challenged. I say that because only seven years ago, the Supreme Court ruled that Congress had exceeded its Constitutional authority when it enacted the Violence Against Women Act, an attempt to make such heinous acts a federal crime (U.S. v. Morrison 529 U.S. 598, 2000 ) . If the Court says Congress can't make beating a woman a federal crime, what would make you think the Court would say it's okay to make beating a woman a federal crime if she's a lesbian? Plus given the change in Court personnel the past decade, it's unlikely they would revisit Morrison and decide the other way.

But back to the main point of this article. Please understand that in suggesting the Confederate Constitution's provision for "one law, one subject" is an idea whose time has come, I'm not pitching for an amendment to the United States Constitution to make it a reality. It's pretty darn hard to get amendments ratified, which is why we've only had twenty-seven in 220 years.

There is an easier way, however to accomplish this. It wouldn't take the intricate amendment process spelled out in Article V. Instead, an appeal to a provision in Article I § 5, ¶ 3 is in order. That provision reads: "Each House may determine the Rules of its Proceedings." In other words, the House of Representatives and Senate could just decide on "one law, one subject" as an institutional policy for conducting their business.

Will we ever see that? Probably not. And so we'll continue to see unpassable and incomprehensible bill proposals linking gay bashing to Iraq War spending. What the heck, maybe they can also work something in there about importing pigs.

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